Citation NR: 9734926
Decision Date: 10/16/97 Archive Date: 10/24/97
DOCKET NO. 96-16 321 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island
THE ISSUE
Entitlement to service connection for a heart condition, to
include the issue of service connection as secondary to
tobacco use during service, or as secondary to nicotine
dependence which arose from tobacco use during service.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. A. Saadat, Associate Counsel
INTRODUCTION
The veteran had active military service from October 1949 to
December 1952.
The issue on appeal arises from an August 1994 rating action
in which the aforementioned regional office (RO) denied
service connection for heart disease. A notice of
disagreement was filed on the veteran’s behalf in January
1995, and a statement of the case was issued in September
1995. The veteran perfected his appeal in October 1995.
On May 9, 1997, a hearing was held at the RO before I. S.
Sherman, who is a member of the Board section rendering the
final determination in this claim and who was designed by the
Chairman of the Board to conduct that hearing, pursuant to 38
U.S.C.A. § 7102(b) (West 1991 & Supp. 1997). The veteran and
his spouse testified at this hearing.
REMAND
Prior to his testimony before the undersigned Board member,
the veteran essentially contended that he suffered from a
heart condition which had its onset in service. During the
hearing, the veteran’s representative also appeared to argue
that the veteran’s heart condition was related to his use of
tobacco in service or from nicotine dependence arising in
service. This issue has not been prepared for appellate
review but is inextricably intertwined with the issue before
the Board. It must be addressed in connection with the issue
on the title page of this decision.
During the hearing before the Board, the veteran alleged that
physicians have informed him that smoking played a part in
his heart disease. The United States Court of Veterans
Appeals held that there is an obligation upon the Secretary
under the provisions of 38 U.S.C.A. § 5103(a) to notify an
individual of what is necessary to complete the application
in the limited circumstances where there is an incomplete
application which references other known and existing
evidence. Robinette v. Brown, 8 Vet. App. 69 (1995). In
this case, the veteran has referenced information that, if
provided, might serve to render his claim well grounded. The
VA has a duty to request this evidence from the veteran.
Precedent General Counsel Opinion 19-97, issued on May 13,
1997, noted the circumstances under which service connection
may be established for tobacco-related disability or death
"on the basis that such disability or death is secondary to
nicotine dependence which arose from the veteran's tobacco
use during service." VAOPGCPREC 19-97 (May 13, 1997). This
opinion should be considered in evaluating the veteran’s
claim.
This case is hereby REMANDED to the RO for the following
actions:
The issue of service connection for a
heart disability related to cigarette
smoking should be evaluated by the RO
with full consideration given to the
opinion expressed in VAOPGCPREC 19-97
(May 13, 1997) and a rating action
issued. In the event the determination
is adverse to the veteran, the claims
folder and any assembled data should be
returned to the Board for continuation of
appellate review after issuance of a
supplemental statement of the case. No
action is required by the veteran unless
he receives further notice.
By this action, the Board intimates no opinion, legal or
factual, as to the ultimate decision warranted.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
IRIS S. SHERMAN
Member, Board of Veterans’ Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans’ Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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